Family status quo for British Columbia

Many employers and practitioners of human rights law in British Columbia (like us) have been following the Federal Court of Appeal decision in Canada (Attorney General) v Johnstone[1], expecting that, as in Alberta and Ontario, the BC Human Rights Tribunal may adopt Johnstone‘s broader federal human rights test for family status discrimination, which would displace the narrower BC test from Health Sciences Association of B.C. v. Campbell River and North Island Transition Society[2] (Campbell River). Although Johnstone was not raised directly in the decision, the BC Human Rights Tribunal recently declined an invitation to reconsider the application of Campbell River and whether its test for family status discrimination has been displaced in British Columbia.

Kenworthy v Brewers’ Distributor (No. 2)[3] involved an application to dismiss two complaints involving allegations of discrimination on the basis of sex and family status and retaliation in the workplace. The respondent employer, Brewers’ Distributor Ltd. (BDL), is a beer warehousing and distributing business. It employed Noelle Kenworthy as a casual warehouse employee with a variable and inconsistent schedule. When Ms. Kenworthy became pregnant, BDL accommodated her by changing her work duties and schedule. After Ms. Kenworthy’s child was born, BDL entered into a series of accommodation agreements with Ms. Kenworthy and made concerted efforts to accommodate her childcare scheduling needs. However, the agreements also provided that Ms. Kenworthy would be responsible for making any personal arrangements necessary to enable her to meet her employment obligations. BDL decided not to renew the accommodation agreement due to Ms. Kenworthy’s failure to fulfil these obligations, giving rise (in part) to Ms. Kenworthy’s human rights complaints. Ms. Kenworthy also alleged in the complaints that she was sexually harassed at the workplace, treated in a discriminatory fashion due to her sex and family status, and retaliated against by BDL when it refused to enter further accommodation arrangements.

With respect to the ground of family status, Ms. Kenworthy argued that the Campbell River test was no longer applicable and that the Tribunal should be guided by the overall test for discrimination from Moore v. British Columbia (Education)[4].

What this means for BC

Emphasizing that there is scope for flexibility in the test for family status discrimination under Campbell River, the Kenworthy decision demonstrates that the Tribunal will require particular circumstances to justify revisiting and potentially displacing the Campbell River test. For now, it appears Campbell River is sufficient for the Tribunal’s purposes to address complaints of discrimination in family status in British Columbia. However, as we posted previously, employers would be well–advised to consider the Johnstone test when examining employees’ accommodation requests on the basis of family status. This will insulate against complaints, even if the resulting accommodation goes further than the law in British Columbia requires. Of course, this is a matter of risk management—there is no reason employers cannot apply the Campbell River test.

Aside from the appropriate test for family status discrimination, Kenworthy also offers a good example of an employer meeting its duty to accommodate family status by properly engaging the accommodation process and pursuing reasonable accommodation options. As the Tribunal put it, the accommodation process is one in which: “all those involved are required to work together to find a solution that adequately balances competing interests”. Having failed or refused to do her part in the accommodation process, the complainant was unable to defeat the employer’s application to dismiss.

Although the Tribunal has confirmed that the Campbell River test remains applicable in British Columbia, given the general desire for uniformity in human rights protections across Canadian jurisdictions and the broader tests being utilized elsewhere, it does raise the question of whether, or perhaps when, the Tribunal will revisit the Campbell River analysis. We will keep you updated on developments.

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McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more